TARIQ AZIZ vs Mst. KALSOOM BIBI and others

ORDER

' ALTAF IBRAHIM QURESHi J.---Through this writ petition, filed under section 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner-Tariq Aziz, SHO, Police Station Shahkot, District Nankana Sahib, seeks annulment of order dated 5-4-2011 passed by the learned Additional Sessions Judge, Nankana Sahib, on a petition moved by Mst. Kalsoom Bibi under section 22-A(6), Cr.P.C. Being complainant and eye-witness of F.I.R. No,143, dated 7-3-2011, registered under sections 302, 148, 149, P.P.C. At Police Station Shahkot, District Nankana Sahib, reporting murder of her brotherMaqbool Ahmad by the nominated accused Abdul Razzaq, Mian Khalid and Sikandar along with four unknown persons, armed with deadly weapons, in heartless manner because of previous enmity. Pre-arrest bail petition moved by the two nominated accused named Abdul Razzaq and Miail Khalid was dismissed on merits by the learned Additional Sessions Judge, Nankana Sahib, vide his order dated 19-3-2011 observing that the accused persons are nominated in a prompt F.I.R.

With specific roles and no mala fide and ulterior motive on the part of the complainant and police was proved.

2. After dismissal of pre-arrest bail application of the aforesaid two accused, they firstly tried to escape but apprehended within the compound of Kutchehry by the police on 19-3-2011. After three days of their arrest, when the police did not make the entry qua arrest in the Roznamcha, the complainant moved various applications to D.P.O. I.G. Etc. For proper arrest of the said accused but in vain, which constrained the complainant to file a petition under section 22-A(6), Cr.P.C. The learned Additional Sessions Judge while requisitioning the comments summoned the petitioner being SHO and the Investigating Officer, who stated in unambiguous terms that though the pre- arrest bail application of the aforesaid accused persons was dismissed on merits but they had declared them innocent and a reference in this regard was sent to DSP (Legal); whereupon the learned Additional Sessions Judge passed the following order:- "This court dismissed the pre-arrest bail of the accused persons vide order dated 18-3-2011. The accused were arrested from the court but they were not shown as arrested in the Roznamcha and they were let free by declaring them as innocent and the SHO concerned deliberately avoided appearing in this court and he under the one pretext and the other sent the I.O. In this court. This is amazing and alarming for this court that when this court has dismissed the pre-arrest bail of the accused persons nominated in the F.I.R. Along with specific roles after hearing both the parties on merits at length, then why not the LO and SHO even after arresting the accused persons from the court wrote down their arrest in the Roznamcha and why not the recoveries made from the accused persons but astonishingly, they released the accused persons from the police station".

' In the ultimate paragraph of his order, the learned Additional Sessions Judge directed the DPO Nankana Sahib to register the case against the delinquent police officers i,e, SHO PS Shahkot (present petitioner) and Ahmed Yar S.I./I.O. Of the case, under Article 155-C of Police Order.

3. Learned counsel for the petitioner contends:--

(i) that Article 155-C of Police Order, 2002, deals with defective investigation and it is the prerogative of the police to adjudge as to whether sufficient material is available for trial or not;

(ii) that the present petitioner has nothing to do with the omission or commission, if any;

(iii) that the court cannot interfere with the investigation, as the same falls within the domain of police and;

(iv) that the impugned order is liable to be set- aside being illegal and harsh.

4. On the other hand, learned Assistant Advocate-General assisted by learned counsel for respondent No,

1. Has opposed the grant of proposed relief on the grounds that conduct of the present petitioner is obvious from the trend and tenor of the order, impugned through this petition, and he is fully involved as he submitted a reference to DSP (Legal) Nankana Sahib, in defiance of the Court's order; that the Investigating Officer Ahmad Yar and present accused Abdul Razzaq'are the nominated accused of case F.I.R. No,434 of 2003, registered under section 382, P.P.C. At Police Station Chuchak, District Okara, thus, on this score alone, the investigation of the present case while taking into confidence the present petitioner being the SHO, is proved to be tainted with mala fide and for mercenary motives, hence, the petition in hand is liable to be dismissed with costs.

5. I .Have heard, the arguments advanced from both sides and perused the file carefully.

6. District Police Officer, Nankana Sahib, submitted his report on 6-6-2011, wherein he stated in clear terms that it was the responsibility of the petitioner to ensure arrest of above said accused but I.O.

Of the case kept the arrest of the accused pending and wrote them innocent vide case Diary No,9 dated 21-3-2011, thus, the I.O. Conducted faulty investigation under the direct supervision of the petitioner. It was also reported that the present petitioner was required to submit the report under section 173, Cr.P.C. In a case of heinous nature against the said accused by placing their names in Column No,2, if they were found innocent, but he did not do so under some ulterior motives. The report of DPO ended with the prayer that the instant writ petition being false, baseless and aimed to exert pressure be disposed of. This is the complete answer to the arguments (i) and (ii) raised by the learned counsel for the petitioner.

7. Much emphasis has been laid by the learned counsel for the petitioner on the point that the court is not competent to interfere with the investigation, which exclusively falls within the domain of police. It is well-settled by now that the investigation does not talk of opinion of police officer, who is only authorized to collect evidence. The police officer was not vested with the power to release the accused, on his own, in a heinous offence, except by following the procedure laid down in section 169, Cr.P.C. It is also well-settled law that no sanctity is attached to opinion of the Investigating Officer regarding guilt and innocence of accused, as it is not binding on Courts. The case-law cited in Muhammad Ahmad (Mahmood Ahmed) v. The State (2010 SCM R 660) is quoted with advantage, the relevant portion thereof is as under:-- "It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer to investigate a case. u>"Investigation" stands defined by the provisions of section 4(1)

(1) of the said Code in the following terms:-- "Investigation includes all the proceedings under this Code for the Collection of Evidence conducted by a police officer...." (emphasis and underlining has been supplied)

This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court. Therefore, whatever expertise, if at all, could be claimed. By an Investigating Officer, would be vis-a-vis his field Of operation, namely, collection of evidence"

' In the recent judgment of the apex Court, reported as Muhammad Arshad and others v. The State and others (PLD 2011 Supreme Court 350), it has been held:- "It will thus be noticed, as mentioned above, that the job of a police officer conducting an investigation was confined only to collection of evidence which evidence, when collected, had to be placed by him before the competent court and it was then the authority and the obligation of this court and only of this court to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly. Conceding formation of such an opinion to a police officer would be a grave illegality which could lead to grave injustice and serious resulting consequences".

8. It will not be out of way to mention here that the Investigating Officer Ahmad Yar and 'present accused Abdul Razzaq are the nominated accused of case F.I.R. No,434 of 2003, registered under section 382, P.P.C. At Police Station Chuchak, District Okara, therefore, mala fide investigation of the present case being in league with the present petitioner, under whose direct supervision, the whole show was displayed, is floating on the surface. Such-like dishonest attitude on the part of the police is giving bad name to their Institution. After dismissal of bail application, wilful attempt on the part of the petitioner as well as the Investigating Officer in not formally arresting, the real accused, is a glaring example of highhandedness and shows disrespect to the Courts, which both the police officers exhibited.

9. Be that as it may, no illegality has been committed by the learned Additional Sessions Judge, while passing the order dated 5-4-2011, which otherwise is based on valid reasons, warranting no interference by this Court in exercise of its Constitutional jurisdiction. This petition having no force is dismissed.